Last week, the High Court published two unanimous judgments and announced a third, bringing its total of unanimous decisions so far this year to 15, out of 17 to date. At this early stage, the Court is tracking ahead of its past rates of unanimous assent in orders.* On my count of the last five years (since Gummow and Heydon JJ left the bench and Gageler and Keane JJ joined), the Court’s judges unanimously asesnted to the court’s orders in 75% (2013), 76% (2014), 81% (2015), 76% (2016) and 67% (2017) of three-or-more judge cases.This average unanimity rate of 76% over the past five years is – according to data compiled and generously supplied to me by regular blog commenter Matan Goldblatt – well ahead of earlier multi-year periods where unanimous orders made up 67% (2007-2012), 54% (2003-2007) and 61% (1998-2003) of High Court decisions. The backdrop (and possible explanation) of the current institutional unanimity rate is each judge’s personal rate of assenting to the Court’s order. From 2013, my count of those rates is: French CJ: 95.5%; Hayne J: 91.9%; Crennan J: 94.8%; Kiefel J/CJ: 97.7%; Bell J: 96.7%; Gageler J: 87.0%; Keane J: 97.1%; Nettle J: 91.1%; Gordon J: 90.0%; and Edelman J: 88.9%.
These figures show that the current court is characterised, not just by its lack of ‘Great Dissenters’ – Gageler J’s outlier of 87% is barely comparable to the likes of Kirby J (around 60%, dropping to 52% in 2006) and Heydon J (55% in his final year) – but perhaps especially by its run of ‘Great Assenters’ Continue reading